St. Paul archbishop, accused of touching boy, won't be prosecuted

Archbishop John C. Nienstedt in October 2010. (Pioneer Press: John Doman)

Ramsey County prosecutors said Tuesday that Twin Cities Archbishop John Nienstedt would not be charged over allegations he inappropriately touched a child.

"St. Paul police conducted an extensive investigation surrounding (the) allegation. ... Based on the investigative file presented by police, the Ramsey County attorney's office concluded there was insufficient evidence to prosecute Archbishop Nienstedt," the office said in a news release.

Investigators determined from a photograph that other people at the event would likely have witnessed such touching by the leader of the Archdiocese of St. Paul and Minneapolis. All who were present were interviewed and reported no disturbances.

In addition, the boy who told his mother about the incident said he didn't feel violated and didn't believe it was significant.

In a memo by Richard Dusterhoft, director of the county attorney's criminal division, the incident was described this way:

A juvenile male was confirmed at the Cathedral of St. Paul on May 5, 2009. He later told his mother that "following the ceremony and while photographs were being taken, Archbishop John Nienstedt touched his buttocks."

At a later date, the boy's mother was having lunch with a friend who is a priest. She relayed to him what her son had told her. The priest reported it to the archdiocese. He also brought it to police Dec. 16.

Investigators interviewed the boy Dec. 18 and 19.

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He told them the incident occurred while he and the other confirmands were lining up for a group photo. He said Nienstedt had one hand on his crozier, or staff, and the other on the boy's shoulder.

Nienstedt then moved his hand down to the back of his buttocks, the boy told police. He did not squeeze or rub the area, the boy said.

"The male said he thought it was 'creepy' but did not feel violated. The male said that he was concerned about the attention the incident was receiving and did not believe the incident was significant," Dusterhoft wrote.

The boy was not aware of incidents involving others.

An active investigation continues into the timing of the report to police by the priest and archdiocese officials, said Dennis Gerhardstein, spokesman for the Ramsey County attorney's office. State law requires "mandated reporters" such as priests, teachers and doctors to report an allegation of child sexual abuse to police within 24 hours.

Police interviewed Nienstedt on Christmas Eve. "The archbishop said he would not have touched the male's buttocks. He stated that while he had no specific recollection of this particular confirmation or confirmand, he stands the same way for all such photographs: with one hand on his crozier and the other on his pallium (stole)," Dusterhoft wrote. "(He) wondered if another confirmand could have touched the victim as a joke."

In a photograph police located, the archbishop is standing on a step higher than the boy, and his right hand appears to be on the boy's left shoulder. Eleven others, including a priest and a deacon, are in the photo.

"It appears from the photograph that the archbishop would have to bend to reach the male's buttocks and that any such action would have likely been witnessed by others present," Dusterhoft wrote.

Since the photograph "appears to contradict" what Nienstedt said about his typical hand placement for photos, police talked with him again.

He said his position in the photo conformed to the way he posed when he was a bishop in New Ulm, not the way he did as the archbishop, when he acquired the stole. "He was surprised to see his hand on the male's shoulder in the photograph," Dusterhoft wrote.

The prosecutor said police talked to everyone in the photo. No one reported anyone being touched, looking startled or touching another inappropriately or as a joke.

Minnesota law defines fifth-degree criminal sexual conduct as "nonconsensual sexual contact," Dusterhoft wrote. But "contact" specifically excludes "intentional touching of the clothing covering the immediate area of the buttocks."

The more serious charges of second- and fourth-degree criminal sexual conduct do not exclude touching the buttocks over clothing, and might apply since the boy was under 16 and the archbishop more than four years older. But those charges would apply only if the touching could be proven beyond a reasonable doubt and if it were done with a sexual or aggressive intent, Dusterhoft wrote.

Besides the lack of witnesses to the alleged conduct, it "also seems unlikely that the archbishop, if he were so inclined, would pick that moment to sexually touch a random boy openly in front of another clergy member, a deacon, and numerous other confirmands while the confirmands' family members were preparing to document the moment in photographs," Dusterhoft wrote.

Resting a hand on the buttocks "could be done in a thoughtless, unintentional or accidental manner," he said.

In a written statement Tuesday, the archdiocese said Nienstedt would resume all his duties.

"I am thankful to the St. Paul police for their thorough investigation, as well as to the Ramsey County attorney's office for their professional work regarding this matter," Nienstedt said in the statement. "I look forward to returning to public ministry during this Lenten season, especially during Holy Week and the great feast of Easter."

Tuesday's announcement "only involves one specific prosecutorial decision" by the county attorney, spokesman Gerhardstein said in a written statement. Police continue to investigate other cases, which can be complex and time-consuming, he said.

The Archdiocese of St. Paul and Minneapolis reported the alleged incident involving Nienstedt on Dec. 17. Though he vigorously denied the charge, Nienstedt said he was stepping aside from his "public ministry" temporarily while an investigation took place.

"I do not know the individual involved; he has not been made known to me," Nienstedt said in a letter addressed to Brothers and Sisters in Christ and shared with reporters in December. "I presume he is sincere in believing what he claims, but I must say that this allegation is absolutely and entirely false."

He has never sexually abused a child, he said.

The report of the allegation came two days after Nienstedt gave the homily at Our Lady of Grace church in Edina and apologized for having "overlooked" the question of child sexual abuse by priests in the archdiocese.

Nienstedt was appointed to lead the archdiocese in 2008 after serving in New Ulm.

At least 20 lawsuits alleging child sexual abuse by clergy have been filed since May. That was when a new state law took effect that temporarily lifts the civil statute of limitations for underage sex-abuse victims.

Nationally, 22 bishops across the country have been accused of sexually abusing a child, according to BishopAccountability.org, which tracks abuse allegations against priests and other clergy.

Nienstedt was born in Detroit in 1947 and ordained a priest in July 1974. He became a bishop in the archdiocese of Detroit in 1996, after he spent more than two decades working for the church in several capacities around the Detroit area. He was appointed bishop of the Diocese of New Ulm in 2001.

In April 2007, the Vatican said Nienstedt would succeed Harry Flynn as archbishop of the Archdiocese of Saint Paul and Minneapolis. He was installed in May 2008.